By the Court,
Bonney, J.We are of opinion that the portions of the judge’s charge above quoted were exceptionable, and that there should be a new trial in this action. The application under which the notes in suit were received was for a loan in Valley Bank bills on specified security for one year; and it appears that bills of that bank were not received, in payment or deposit by the banks in the city of Sew York, and that they were purchased by brokers at one per cent discount ; but they passed freely, at par, in ordinary business transactions; and there was no proof or pretense that Leland & Oo. did not receive the bills at par, or that Dillaye used them in his business at less than their par value. Under these *80circumstances we think both Leland & Co. and Dillaye may have known that bills of the Valley Bank were at a discount, that is, were not “ current” at bank, and were so redeemed or purchased in New York at less than their par value, and yet the transaction between them not be necessarily usurious. (Bank of U. S. v. Waggoner, 9 Peters, 378. Codd v. Rathbone, 19 N. Y. R. 37. Slosson v. Duff, 1 Barb. S. C. R. 432.)
[New York General Term, November 5, 1860.Sutherland, Bonney and Hogeboom, Justices.]
We are also of opinion that if Leland did make the very arrangement which he intended to make, and the effect of that arrangement was to give him more than at the rate of seven per cent per annum for the use of his money which it was not his intention to get, the transaction was not necessarily and jper se usurious. There was no proof that Leland & Go. were in the habit of making loans in the bills of the Valley Bank, or other uncurrent bills. It docs not appear that they ever made any other loan, and when the arrangement in this case was made, nothing was said about interest. The agreement for the loan may have been in fact and in the intent of either or both of the parties thereto corrupt and usurious, but, as we think, it may also have been otherwise. And whether it was usurious or not was a question of fact, which should have been submitted to, and determined by, the jury.
The judgment must be reversed, and a new trial granted; costs to abide the event of the suit.